Stout v. Dunning , 72 Ind. 343 ( 1880 )

Biddle, J.

— Complaint for the partition of lands by the appellees against the appellants'. James B. Stout answered the complaint by a general denial, which was afterward withdrawn, and also by two special paragraphs. , The second paragraph, pleaded by James B. Stout separately, admitted an interest in the complainants in said lands, but averred that all of said real estate was subject to a life-estate in himself ; that said real estate, in the year 1862, was owned by Daniel Stout; that said Daniel Stout and wife conveyed the same to the grantors of the plaintiffs, who are the children of James B. Stout, subject to a life-estate in this defendant, making the deed an exhibit. James B. Stout is not named as a vendee in, the premises of the deed, but it contains a condition in his favor in the following words:

‘ ‘A condition in the foregoing conveyance is that the said James B. Stout is to have the privilege of a support off of said lands during his lifetime without incumbrance.”

The third paragraph of James B. Stout’s answer sets up the same deed and condition, and is not different from his second paragraph, except that it avers that, by mutual mistake of the grantors and grantees, “said deed of conveyance reserved to this defendant the right of support off of said lands during his natural life, instead of a life-estate to this defendant in said lands, as was agreed upon and understood by the.grantors and the grantees.”

The court sustained a demurrer, for want of facts, to each of these paragraphs. Judgment was then had on the demurrer for the appellees, and the lands, not being susceptible of division, decreed to be sold, etc.

•Does the condition expressed in the deed entitle James B. Stout to a life-estate in the lands sought to be partitioned ? Whether the words of the condition in the deed would have •conveyed to James B. Stout a life-estate at common law, we need not inquire; but we are of opinion that the condition entitles him to a life-estate in equity. The words, “to have the privilege of a support off of said lands during' his lifetime, without encumbrance,” express a sufficient habendum to support his claim. He could not obtain such a support from the land without possessing it, and could not obtain his support, without encumbrance, unless he possessed the land exclusively. The fact that James B. Stout is not named as a vendee in the premises of the deed would not affect his right in equity. Prior v. Quackenbush, 29 Ind. 475.

This court has held that partition of lands by a remainder-man can not be had during the existence of a life-estate therein. Nicholson v. Caress, 59 Ind. 39; Schori v. Stephens, 62 Ind. 441.

We think the court erred in sustaining the demurrer to the second and third paragraphs of the answer of James B. Stout.

The judgment is reversed, at the costs of the appellees; cause remanded with instructions to overrule said demurrer and for further proceedings.